| Matter of Citizens' Envtl. Coalition, Inc. v New York State Dept. of Envtl.Conservation |
| 2008 NY Slip Op 10092 [57 AD3d 1279] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Citizens' Environmental Coalition, Inc., et al., Appellants,v New York State Department of Environmental Conservation et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Karen R. Kaufmann of counsel), forrespondents.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Cahill, J.), entered March 4, 2008in Albany County, which partially dismissed petitioners' application, in a proceeding pursuant to CPLRarticle 78, to review certain regulations by respondent Department of Environmental Conservation.
In 2003, the Legislature passed the Brownfield Cleanup Program Act "to encourage [the] cleanupand redevelopment of brownfield," or hazardous waste, sites (ECL 27-1403; see Weinberg,Practice Commentaries, McKinney's Cons Laws of NY, Book 17½, ECL 27-1401, at 365).Under the Act, developers receive substantial tax credits and release from future liability in exchange forcleaning up brownfield sites. Respondent Department of Environmental Conservation (hereinafter DEC)is vested with the authority to implement the statute, including the authority to promulgate regulations. In2006, DEC adopted final regulations implementing the Act (6 NYCRR part 375), and petitionersthereafter commenced this CPLR article 78 proceeding challenging subpart 375-3, which governscleanup eligibility and site-specific remedial programs, and subpart 375-6, which establishes generictables of contaminant-specific [*2]soil cleanup objectives (hereinafterSCOs) (see 6 NYCRR 375-6.8). Supreme Court granted the petition to the extent of vacating6 NYCRR 375-3.8 (e) (4) (iii), which allowed exposed surface soils to remain at site backgroundlevels in certain instances, and otherwise dismissed the petition. Petitioners now appeal.
Initially, we agree with Supreme Court that DEC's construction of the statute is entitled todeference. Where the question presented is not one of pure legal interpretation, " 'the practicalconstruction of the statute by the agency charged with implementing it, if not unreasonable, is entitled todeference by the courts' " (Matter of Village of Scarsdale v Jorling, 91 NY2d 507, 516 [1998][citation omitted]; see Matter of Teachers Ins. & Annuity Assn. of Am. v City of New York,82 NY2d 35, 41-42 [1993]; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459[1980]).
Turning to the merits, petitioners first contend that DEC's regulations violate ECL 27-1415 (6)because the generic SCOs established therein expressly do not account for the impacts of soilcontaminants on surface water or aquatic resources, or for the effects of soil vapor intrusion on indoorair in buildings (6 NYCRR 375-6.7 [a] [1], [3]; [b] [1]; 375-6.6 [a] [2] [ii]). As noted by petitioners,ECL 27-1415 (6) (b) provides that SCOs "shall be protective of public health and the environmentpursuant to subdivision one of this section." ECL 27-1415 (1), in turn, states that "[a]ll remedialprograms shall be protective of public health and the environment including but not limited togroundwater . . . ; drinking water, surface water and air (including indoor air);. . . and ecological resources, including fish and wildlife." Petitioners assert that becausesubdivision (6) (b) of ECL 27-1415 references subdivision (1) in mandating creation of the SCOs,DEC's regulations on SCOs must directly address every environmental resource listed insubdivision (1) in order to protect public health. Inasmuch as DEC's regulations expressly decline toaccount for the impacts of soil contaminants on surface water, aquatic resources and soil vapor despitethe fact that those resources are listed in subdivision (1), petitioners assert that the regulations areinconsistent with the implementing statute and must be vacated (see Seittelman v Sabol, 91NY2d 618, 625 [1998]; Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266,276-277 [1992]; Matter of McNulty v New York State Tax Commn., 70 NY2d 788, 791[1987]).
Respondents counter that DEC determined, after a multiyear effort that included the involvement ofthe public and consultation with the Department of Health, that any impacts on these three resourcesare highly variable, inherently site-specific and can be effectively addressed only through cleanup goalstailored to resources actually present at the site.[FN*]Respondents assert [*3]that the Legislature intended DEC to developremediation programs, including but not limited to SCOs, that effectively operate together to ensureprotection of public health and the environment (see ECL 27-1403). We agree withrespondents that petitioners interpret the statute too narrowly and that, after declaring its will, theLegislature "endow[ed] [DEC] with the power to fill in the interstices in the legislative product byprescribing rules and regulations consistent with the enabling legislation" (Matter of Nicholas vKahn, 47 NY2d 24, 31 [1979]).
In our view, DEC rationally determined, consistent with the statute's mandate that site-specificprograms in conjunction with the SCOs ensure protection of public health and the environment(see ECL 27-1415 [1]), that the development of generic SCOs for surface water, aquaticresources and indoor air would have been impractical and ineffective to achieve protection of the publichealth. As explained in an affidavit submitted by DEC, sites that do possess surface waters and aquaticresources display a wide range of characteristics affecting the degree to which soil contamination mayimpact these resources, such that generic SCOs would be inappropriate and insufficiently protective atmany sites. Similarly, because the level of soil contamination at a site does not determine the level ofvapor intrusion—and even low-level concentrations of contaminants in soil do not ensure theabsence of vapor intrusion exposure—DEC requires an evaluation of vapor intrusion pathwaysat all sites, regardless of the magnitude of soil contamination. Indeed, contamination of surface water,aquatic resources and indoor air are extensively addressed in regulations governing site-specificremedial programs, which require mitigation of impacts on these resources as an element of the cleanupremedy at any site (6 NYCRR 375-1.8 [a] [6]; 375-3.8 [a]; 375-6.7 [a] [2], [3]; [b] [3] [ii]).According deference to DEC's determination in its area of technical expertise, petitioners have failed toestablish that DEC was required to develop SCOs to account for soil contamination impacts on surfacewater, aquatic resources or indoor air, or that the challenged regulations do not adequately protect thepublic health and the environment, including the resources at issue, as mandated by the implementingstatute.
We further reject petitioners' argument that DEC did not comply with ECL 27-1415 (6) (b) (v)because it failed to identify and account for more stringent cleanup levels that may have been achievedin prior remediations. ECL 27-1415 (6) (b) (v) provides that in developing SCOs, DEC must consider"the feasibility of achieving more stringent remedial action objectives, based on experience under theexisting state remedial programs, particularly where toxicological, exposure, or other pertinent data areinadequate or nonexistent for a specific contaminant." Nothing in the statute requires DEC to perform acomprehensive analysis of all historically achieved cleanup levels; rather, the statute requires only thatDEC consider "the feasibility" of achieving more stringent SCOs in light of its past experience (ECL27-1415 [6] [b] [v]). Affidavits from DEC and Department of Health employees describing the processby which SCOs were developed indicate that the two agencies developed a list of 86 priority chemicalsmost commonly identified at contaminated sites, utilized their expertise to determine that [*4]toxicological and exposure data were adequate, developed SCOs for theprotection of human health and ecological resources, and compared the SCOs to the standards appliedby DEC in designing cleanup remedies under other state environmental remediation programs.Inasmuch as the record reveals that DEC complied with the statutory requirement that it consider thefeasibility of setting more stringent SCOs in light of the adequacy of available data and standardsdeveloped based on its experience under other state remedial programs, it cannot be said to have actedarbitrarily and capriciously in this regard.
Finally, we agree with Supreme Court that 6 NYCRR 375-3.3 (a) (2), which specifies that DEC"shall consider only contamination from on-site sources" in determining which sites are eligible for theprogram, does not contravene the statute. Petitioners maintain that the exclusion of propertiescontaminated by off-site sources is contrary to the statute both because the Legislature did not includean express exclusion therein and because the statute broadly defines a "Brownfield site" as "any realproperty, the redevelopment or reuse of which may be complicated by the presence or potentialpresence of a contaminant" (ECL 27-1405 [2]). Given the lack of any language in the statute directlyaddressing the issue, the statutory focus on removal of the source of contamination through remediationprograms (see ECL 27-1415 [5], [5-a]), and the separate enforcement mechanisms wherecontamination has been caused by off-site sources (see ECL 27-1411 [1] [c]; [5]), SupremeCourt properly concluded that 6 NYCRR 375-3.3 (a) (2) constitutes a rational determination that thegoals of the statute are best served by addressing contamination at its source.
In sum, inasmuch as DEC complied with the statute in promulgating the generic SCOs and theregulatory exclusion of properties contaminated by off-site sources, we cannot say that the regulationsat issue are irrational and, thus, the partial dismissal of the petition must be affirmed.
Spain, Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, withoutcosts.
Footnote *: Petitioners contend that this Court isbarred from considering the affidavit of James Harrington, the Section Chief for the Training andTechnical Support Section of the Division of Environmental Remediation within the DEC, describing theprocess that the DEC undertook in the promulgation of the regulations at issue, because the affidavitwas not part of the "administrative record." Petitioner's argument lacks merit. This matter is not acertiorari proceeding involving a determination made after a hearing and compilation of a fulladministrative record; rather this proceeding sounds in mandamus to review. DEC was thereforepermitted to consider "whatever evidence [was] at hand," and the affidavit of its employee describingthat evidence and the process through which DEC made its determination is properly before us (seeMatter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758[1991]; 377 Greenwich LLC v New YorkState Dept. of Envtl. Conservation, 14 Misc 3d 417, 426 [2006]).